Copyright and Fair Use

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A healthy copyright system must balance the need to provide strong economic incentives through exclusive rights with the need to protect important public interests like free speech and expression. Fair use is foundational to that balance. It's role is to prevent copyright from stifling the creativity it is supposed to foster, and from imposing other burdens that would inhibit rather than promote the creation and spread of knowledge and learning.

The Fair Use Project (FUP) was founded in 2006 to provide legal support to a range of projects designed to clarify, and extend, the boundaries of fair use in order to enhance creative freedom and protect important public rights. It is the only organization in the country dedicated specifically to providing free and comprehensive legal representation to authors, filmmakers, artists, musicians and other content creators who face unmerited copyright claims, or other improper restrictions on their expressive interests. The FUP has litigated important cases across the country, and in the Supreme Court of the United States, and worked with scores of filmmakers and other content creators to secure the unimpeded release of their work.

Alex Feerst leads the Legal and Trust and Safety teams at Medium. Before joining Medium, he practiced at Durie Tangri and before that at Orrick (and, before that, at Stanford CIS as a Residential Fellow). His copyright cases include representing used bookseller Supap Kirtsaeng and streaming app Aereo. Before law school, he taught American literature and literary theory at Macalester College.

Brett Frischmann’s expertise is in intellectual property and internet law. After clerking for the Honorable Fred I. Parker of the U.S. Court of Appeals for the Second Circuit and practicing at Wilmer, Cutler & Pickering in Washington, DC, he joined the Loyola University Chicago law faculty in 2002. He has held visiting appointments at Cornell and Fordham.

Lauren is an experienced attorney, frequent speaker and start-up advisor who has worked in the field of Internet law and policy since 1995. She is the founder of BlurryEdge Strategies, a legal and strategy consulting firm located in San Francisco that advises technology companies and investors on cutting-edge legal issues.

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"Am I a crook?" A design client recently asked me this question about one its designs, and whether is was legally inspired by or stolen from other works. Of course, Jonathan Adler may consider my client a crook when it uses an edited, transformed, and artistically styled sample of his pillow design to create a custom-made wallpaper design for sale to the public. But would he be right? These days, it is getting harder to tell, but there are still guidelines that can help you navigate the sometimes murky waters separating inspiration from infringement.

The bright lines of the real property based view of copyright are being blurred by technology. In 1991, Mr. Biz Markee was found liable for infringing Mr. Gilbert O'Sullivan's copyright in his song, Alone Again (Naturally), when Mr. Markee used an unauthorized sample in his rap song entitled Alone Again. Had Mr. Markee used Mr. O'Sullivan's song in a mash up, the result may have been different.

The first part of this article outlined the mechanics of the Megaupload website, and the novel questions of criminal inducement on which the government's indictment is premised. Here, we explore two more extensions of existing law on which the indictment is based, and the impact this prosecution is likely to have on Internet innovators and users alike.

Days after anti-piracy legislation stalled in Congress, the U.S. Department of Justice coordinated an unprecedented raid on the Hong Kong-based website Megaupload.com. New Zealand law enforcement agents swooped in by helicopter to arrest founder Kim Dotcom at his home outside of Auckland, and seized millions of dollars worth of art, vehicles and real estate. Six other Megaupload employees were also arrested. Meanwhile, the Justice Department seized Megaupload's domain names and the data of at least 50 million users worldwide.

It is now received wisdom that a properly functioning democracy requires transparency and accountability — information shared with the public that allows the public to know what its government is doing. It is equally uncontroversial to say that social media allows for an unprecedented amount of informal but structured dissemination and analysis of information. Despite these two basic points, U.S. freedom of information law has failed to harness the power of these new social media networks and, more importantly, formats in a way that amplifies public knowledge of government information.

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Sarah Morris is a well-known multimedia artist and filmmaker. In 2007, she debuted her "Origami" series, 24 paintings in which she reworked, redesigned, and reshaped origami crease patterns on canvas. Several origami artists sued Morris for copyright infringement, arguing Morris had unduly appropriated their allegedly copyrightable origami crease patterns in developing the "Origami" series. The Fair Use Project teamed up with attorneys Bob Clarida and Donn Zaretsky to defend Morris. We briefed the fair use issues on summary judgment.

We filed an amicus brief in the Second Circuit on behalf of The Andy Warhol Foundation for the Visual Arts urging the appeals court to reverse a district court decision that ignored established fair use principles that many artists rely upon in creating their work.

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"As it stands, AIs in the US cannot be awarded copyright for something they have created. The current policy of the US Copyright Office is to reject claims made for works not authored by humans, but the policy is poorly codified. According to Annemarie Bridy, a professor of law at the University of Idaho and an affiliate scholar at Stanford University’s Center for Internet and Society, there’s no actual requirement for human authorship in the US Copyright Act. Nevertheless, the “courts have always assumed that authorship is a human phenomenon,” she says."

"“We’re pleased that the Federal Circuit agreed that the podcasting patent is invalid,” said Daniel Nazer, a staff attorney at the EFF and the Mark Cuban Chair to Eliminate Stupid Patents. “We appreciate all the support the podcasting community gave in fighting this bad patent.”"

""I would think that in this case—a non-commercial site reviewing Olive Garden pasta—the claim of infringement is very, very weak," Daniel Nazer, a staff attorney with the Electronic Frontier Foundation, who recently helped a design blog with a similar issue, told Ars.

"Daniel Nazer, a staff attorney for the Electronic Frontier Foundation, said facts and story concepts generally can’t be copyrighted. Short phrases like headlines or titles likely wouldn’t be subject to copyright, either, he said.

“There’s only so many ways to say that someone used a Spotfiy playlist to break up with someone, and that fact is no more copyrightable than the fact that the president fired the F.B.I. director,” he said."

RSVP for this free event today.6:00pm Reception - Neukom Faculty Lounge - Neukom Building 7:00pm Panel - Room 290 - Law School Building Live streaming through UStream will be available and a final video recording will be available on our YouTube channel.

Learn about the Center for Internet and Society. Come meet CIS and hear about our exciting work and ways to get involved. Learn about the Fair Use Project, Consumer Privacy Project, and more. Lunch will be provided. RSVP for this free event today.

Tim Wu is an author, policy advocate and author of The Master Switch. He is a professor at Columbia Law School, the chairman of media reform organization Free Press, and is working for the FTC as a senior advisor. Wu was recognized in 2006 as one of 50 leaders in science and technology by Scientific American magazine, and in 2007 Wu was listed as one of Harvard's 100 most influential graduates by 02138 magazine.

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""Ideas, before you actually put them to work, are very vulnerable to stealing," said University of California, Hastings law professor Ben Depoorter. "We give protection to someone who can make good on that idea, and put it into a particular application, practice, expression, art form.

The song “Happy Birthday” has a long, litigious history dating back to the 1930s. Every year, people spent millions in royalties to use the song, until a class action lawsuit was brought challenging whether the owner, Warner/Chappell Music, actually owned the copyright it so aggressively enforced. Elizabeth Townsend-Gard, Tulane School of Law professor specializing in copyright law, discusses the case of “Happy Birthday.”